EAT Hearings

[Muggedbyosmosis]

Hi,

 

I recently had costs awarded against me at a PHR. I had not been expecting this. I am picking up the pieces now after the shock of it all.

 

A good friend referred me to this forum and to some recent posts about costs, in particular the fact that the employer is not allowed to charge more than £33 ph for preparing for the hearing. Mine charged £110 ph - this was not challenged by the judge. They also included external solicitor's costs on top.

 

If I apply the £33 limit it works out that I will be paying more in costs than the employer was allowed to claim for. I am incensed by this! What can I do?

[steampowered]

Where did you read about the £33 limit?

[Muggedbyosmosis]

Hi, apologies for the delay - I have been under the weather and unable to get down to the the shops to use the internet.

 

I found the £33 rule via a recent thread on here called 'application of costs'. It was post in #88 by a poster called derwent who referred to rule 79.

 

At the time of my PHR I did not know there would be a costs request by the other side. I was representing myself. After the PHR - when I had picked myself up off the floor I contacted the respondents to query the highly hourly rate and the amount of hours they had claimed. They told me they had every right to do that - it was a very brief exchange.

 

I feel that I have been mugged for a large amount of money. I don't think the judge played an even hand - surely he should know that they weren't allowed to charge more than £33? Reading what has been advised in the 'application for costs' thread the respondents were only allowed to apply for the costs of the external solicitors they used or their own in-house legal advisors. both sets of costs were on the schedule. The judge should have known that they couldn't apply for both if that is correct.

 

I feel let down by the judge and that this could be fraudulent behaviour by the respondents and I should refer to the police. Is this something I should consider?

Edited October 31, 2013 by Muggedbyosmosis
spelling mistakes

[Derwent]

You have clear grounds to appeal this.Under the Employment Tribunals rules of procedure it is clear that the in-house costs are awarded by a preparation order and external legal costs awarded by a costs order.

Rule 75.3 states that a costs order and a preparation time order may not both be made in favour of the same party in the same proceedings.

The amount for a preparation order is capped at £33 per hour as per Rule 79.2 of the regulations

Copy of the rules of procedure can be found here....http://www.legislation.gov.uk/uksi/2013/1237/schedule/1/made

Edited November 1, 2013 by Derwent

[steampowered]

Yes, it sounds like something has gone badly wrong here. Per Rule 75 - (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings.

 

It would be pointless to refer this to the police. The police are not going to get involved in a civil dispute and they are not going to act like an appeal court.

 

Your remedy is to appeal the costs order. Difficult to say for sure without knowing more about the case, but I would imagine you will find yourself liable for the costs order for legal representation but not the preparation time order.

[becky2585]

It might also help if you post the wording of the order?

[Muggedbyosmosis]

Yes, it sounds like something has gone badly wrong here. Per Rule 75 - (3) A costs order under paragraph (1)(a) and a preparation time order may not both be made in favour of the same party in the same proceedings.

 

It would be pointless to refer this to the police. The police are not going to get involved in a civil dispute and they are not going to act like an appeal court.

 

Your remedy is to appeal the costs order. Difficult to say for sure without knowing more about the case, but I would imagine you will find yourself liable for the costs order for legal representation but not the preparation time order.

 

Thanks steampowered, I wouldn't seek to involve the police in the in-and-outs of my civil claim, however I feel there may be a seperate issue about submitting a fraudulent set of figures which they (the respondents) then insisted were acceptable rather than fessed up to the 'error'.

[Muggedbyosmosis]

It might also help if you post the wording of the order?

 

Hello becky2585, could you bear with me please - I have to go home and find that document (am in an internet cafe). I remember there wasn't much to the order, a couple of paragraphs thats all. I would have thought it would have been much longer given the circumstances, but it wasn't.

[Muggedbyosmosis]

OK, back again becky2585.

 

The order was very brief (2 paragraphs)!

 

The first paragraph noted that my claim was out of time (on a technicality argued by the respondents legal team).

The second paragraph simply reads 'The claim was misconceived and it was unreasonable to pursue it. The Claimant is ordered to pay £#,###.00 as a contribution towards the legal costs incurred by the Respondent.'

 

That is it.

 

PS Thanks for your earlier advice/post as well derwent.

[steampowered]

That is phrased as a costs order, not a preparation time order. Presumably the Respondent was not awarded the full amount it was claiming?

[becky2585]

Thanks for that - did they send you detailed reasons for the judgment? I'm still not 100% familiar with the new ET rules, but a judge did indicate to me recently that he HAD to deliver a full Judgment in writing under the new Rules, rather than only if one was requested under the old Rules. I'll look into it when I get a minute.

 

One last question - what's the date on the Order?

[Muggedbyosmosis]

That is phrased as a costs order, not a preparation time order. Presumably the Respondent was not awarded the full amount it was claiming?

 

Hello steampowered, they claimed a five figure sum and they were awarded a four figure sum - roughly 35% of their claim. I had no idea about the figures before the meeting! (I can put up a summerised rounded breakdown if that helps?). I don't understand the differences/nuances between a 'costs order' and a 'time preparation' order - is there a website link where I can read what should and shouldn't be in each type of order?

Edited November 4, 2013 by Muggedbyosmosis

[Muggedbyosmosis]

Thanks for that - did they send you detailed reasons for the judgment? I'm still not 100% familiar with the new ET rules, but a judge did indicate to me recently that he HAD to deliver a full Judgment in writing under the new Rules, rather than only if one was requested under the old Rules. I'll look into it when I get a minute.

 

One last question - what's the date on the Order?

 

Thanks becky2585, the order was dated late June 2013. I went to my local CAB who were helpful and they suggested I asked for a review of the decision, and a full set of wriiten reasons for the decision and the level of costs. I put these requests in seperately, by email, on the same day (within 2 weeks of the date of the order) - I got the results of the review back (a refusal to change the decisions) but I have never recieved anything back on the other two requests.

[becky2585]

Thanks becky2585, the order was dated late June 2013. I went to my local CAB who were helpful and they suggested I asked for a review of the decision, and a full set of wriiten reasons for the decision and the level of costs. I put these requests in seperately, by email, on the same day (within 2 weeks of the date of the order) - I got the results of the review back (a refusal to change the decisions) but I have never recieved anything back on the other two requests.

 

This could be tricky as you only have 42 days to appeal.

 

How much was the award?

[steampowered]

Hello steampowered, they claimed a five figure sum and they were awarded a four figure sum - roughly 35% of their claim. I had no idea about the figures before the meeting! (I can put up a summerised rounded breakdown if that helps?). I don't understand the differences/nuances between a 'costs order' and a 'time preparation' order - is there a website link where I can read what should and shouldn't be in each type of order?

Hi,

 

Costs order is for the costs of legal representatives.

 

Preparation time order is for internal costs of preparing for the Tribunal where the employer does not use a legal representative.

 

Only the preparation time order is capped at 33 an hour. It sounds like only a costs order was made in your case.

[Muggedbyosmosis]

This could be tricky as you only have 42 days to appeal.

 

How much was the award?

 

Hi becky2585,

 

I had submitted an appeal in time and that is currently on hold (a stay of appeal?) pending the receipt of full written reasons for the decisions. I picked up a cost of £5,600.

[Muggedbyosmosis]

Hi,

 

Costs order is for the costs of legal representatives.

 

Preparation time order is for internal costs of preparing for the Tribunal where the employer does not use a legal representative.

 

Only the preparation time order is capped at 33 an hour. It sounds like only a costs order was made in your case.

 

Thanks steampowered, looking at the schedule of costs the respondent included their own internal legal people and external representatives to prepare for the hearing. Can both internal and external legal reps be included in a costs order? The hourly cost of the internal employees are grossly inflated beyond the real pay rate (they would be millionaires on that hourly rate)! This is all very distressing.

[steampowered]

Thanks steampowered, looking at the schedule of costs the respondent included their own internal legal people and external representatives to prepare for the hearing. Can both internal and external legal reps be included in a costs order? The hourly cost of the internal employees are grossly inflated beyond the real pay rate (they would be millionaires on that hourly rate)! This is all very distressing.

 

You say they were only awarded 35% of their costs. Could it be that the judge did not allow them to claim anything for their own internal legal people?

[Derwent]

Thanks steampowered, looking at the schedule of costs the respondent included their own internal legal people and external representatives to prepare for the hearing. Can both internal and external legal reps be included in a costs order? The hourly cost of the internal employees are grossly inflated beyond the real pay rate (they would be millionaires on that hourly rate)! This is all very distressing.

 

 

What were their actual costs incurred for their external legal representatives ? If they are more than £5,600 then it may be that the judge has already disallowed their internal costs and then reduced the external costs.

[Muggedbyosmosis]

Hi steampowered and derwent,

 

I wish it was only the cost of the external solicitors - that would make things less stressful right now. The external solicitors were about £2k in total (I didnt bring the schedule out with me today!). The vast bulk of the 'costs' were for the respondent's internal legal staff. I'II type in a summary when I come back into town tomorrow.

 

It makes sense that respondent's employee costs per hour for preparing for the hearing should be capped (£33 ph - though I find that a large amount/rate anyway!).

Am I correct in thinking that if the respondent claims that those staff were legal staff (even though they have also used external solicitors) they are allowed to go far beyond the £33 limit and charge £100, £150, £200 ph instead?

 

If the respondent couldn't go beyond the £33ph limit the total 'cost' they could have applied for internal employees would have been about/around £4,300 - £4,500 (from memory), which is a lot less than the amount I got saddled with.

Edited November 8, 2013 by Muggedbyosmosis
additional info.

[Muggedbyosmosis]

Hi steampowered and derwent,

 

I wish it was only the cost of the external solicitors - that would make things less stressful right now. The external solicitors were about £2k in total (I didnt bring the schedule out with me today!). The vast bulk of the 'costs' were for the respondent's internal legal staff. I'II type in a summary when I come back into town tomorrow.

 

It makes sense that respondent's employee costs per hour for preparing for the hearing should be capped (£33 ph - though I find that a large amount/rate anyway!).

Am I correct in thinking that if the respondent claims that those staff were legal staff (even though they have also used external solicitors) they are allowed to go far beyond the £33 limit and charge £100, £150, £200 ph instead?

 

If the respondent couldn't go beyond the £33ph limit the total 'cost' they could have applied for internal employees would have been about/around £4,300 - £4,500 (from memory), which is a lot less than the amount I got saddled with.

 

 

Hi, I have the figures with me now, I'II keep them rounded for convenience. The external solicitors costs came to £2,200

The internal costs came in three rates - there was one person rated 'A' at £110 ph who did 30 hours, 2 people rated 'B' at £90 ph who did 100 hours between them apparently and one rated 'C' at £80 ph who did 10 hours. That came to £13,100 - a total of £15,300 when the external solicitors are added.

 

If they had only been allowed to charge £33 ph the total internal cost would have been £4,600 - a lot less than I was ordered to pay.

 

My employer is a public sector company - surely they cannot be permited to apply inflated commercial rates to their costs?

[Pusillanimous]

Unfortunately, noone has successfully overturned a costs order yet as the tribunal has wide-ranging powers in this. What you should include in your appeal is the issue of both internal and external costs being applied and if the tribunal failed to take into account your personal circumstances (this is a discretion not a right) then appeal that too. You can get the costs reduced on these grounds. Apply to amend your appeal if you have not included these grounds. However, from case law, 35% sounds about correct as the guidelines the tribunals are supposed to adopt.

[steampowered]

This is a bit beyond my personal experience, but based on what you have posted (and remembering what they claimed is not necessarily the same as what they were awarded) I would be appealing on the basis of the 33 cap and the basis that a preparation costs order and time costs order should not be made in the same case. You should try to get someone legal to properly look through your papers if you can (perhaps try the CAB). Remember there are strict time limits for appealing.

[Muggedbyosmosis]

thanks for the advice steampowered, I wish it was a bit beyond my experience as well.

 

Could somebody clarify a couple of things for me please?

 

1. If a claimant goes to an EAT to appeal a Tribunal decision can the respondent threaten the claimant with a costs application for making an appeal? (I was unaware of the costs application before my Tribunal hearing - can I be 'mugged' again by the respondent?)
   
2. If a preparation costs application and a costs award application are two different things should a respondent be allowed to incorporate/include a preparation costs application within a costs order application - or are they wholly seperate things? (I hope that makes sense).
   

Thanks in advance.

[steampowered]

1. Yes. They won't get costs just for lodging an appeal, since it goes through a sift by the EAT first to check whether the appeal has merit. If your appeal notice is accepted and there is a contested appeal hearing which you lose they can ask for costs. The EAT does not usually award costs but it has the power to do so.

2. No, as set out earlier in this thread the rules say they should only get one or the other not both. Its not clear to me which (or both?) they were awarded in this case.